contract appeals board opinion: synergistic inc

8/3/2019 Contract Appeals Board Opinion: Synergistic Inc.

1/20

DISTRICT OF COLUMBIA

CONTRACT APPEALS BOARD

PROTEST OF:

)Urban Alliance Foundation ) CAB Nos.: P-0886, P-0887,Voices of Our Sisters ) P-0890, P-0891,Progressive Educational Experiences in Cooperative Cultures ) P-0892Higher Development Academy ) (Consolidated)Jobs for Americas Graduates )

)Solicitation No. DCCF-2011-R-3963-SDA 2 )

For the protester Urban Alliance: James P. Gallatin, Jr., Lawrence S. Sher, Gregory S. Jacobs, Joelle E.K.Laszlo, Melissa E. Beras and Stacy C. Forbes, Reed Smith LLP. For the protester Voices of Our Sisters:

Kenya Welch,pro se. For the protester Progressive Educational Experience in Cooperative Cultures: SaraStone, pro se. For the protester Higher Development Academy: Deborah Hayman, pro se. For the

protester Jobs for Americas Graduates: Lawrence P. Block, Dennis Lane, and Thorn Pozen, StinsonMorrison Hecker LLP. For the District of Columbia Government: Talia Sassoon Cohen, AssistantAttorney General, Office of the Attorney General.

Opinion by Administrative Judge Maxine E. McBean with Chief Administrative Judge Marc D. Loud,Sr., (concurring with separate opinion) and Administrative Judge Monica C. Parchment concurring.

OPINION

Filing ID 42527096

Urban Alliance Foundation (Urban Alliance) has filed a protest challenging its removal fromthe competitive range under a solicitation seeking a contractor to design and implement an in-schoolyouth workforce development program to support between 250-500 at-risk youths. (AR at Ex.1, B.1.)Subsequent to the Districts award of the contract to Synergistic, Inc. (Synergistic), four other offerors,Voices of Our Sisters (VOOS), Progressive Educational Experience in Cooperative Cultures(PEECC), Higher Development Academy (HDA), and Jobs for Americas Graduates (JAG) filed

protests with this Board raising additional protest grounds. On September 2, 2011, the Board issued anorder consolidating the protests. The protesters challenges generally concern (a) irregularities with andcancellation of a procurement process beginning in September 2010, (b) the Districts failure to evaluatethe proposals in accordance with the law and the terms of the solicitation, and (c) non-responsibility of theawardee, Synergistic. On September 23, 2011, the District filed a motion to dismiss all protests as either

untimely or for lack of standing.

We find the protests timely and that the protesters have standing. Further, the Board finds thatthe Districts Office of Contracting and Procurement (OCP) failed to follow proper procedures inevaluating the proposals. This failure was pervasive and extensive so as to render the final awarddecision arbitrary and capricious. Following are four areas where OCP acted inconsistently in terms ofthe solicitation and in violation of procurement law: (A) failure to disclose mandatory minimumrequirements, (B) failure to adequately document, (C) failure to evaluate reasonably, and (D) failure toconduct a blind evaluation. Taken together, these findings constitute sufficient basis for sustaining the


2/20

Urban Alliance Foundation, et al.P-0886, P-0887, P-0890

P-0891, P-0892

-2-

present protest thus the Board finds it unnecessary to address the responsibility of the awardee at thistime. However the irregularities of the evaluation process are sufficiently material so as to warranttermination of the current contract effective no later than the close of the current school year in June2012. To the extent that these services are required by the District for the summer school session of 2012and beyond, the District shall issue a request to the twenty-three offerors for revised technical and cost

proposals for the remainder of the base year and the option years. The District shall evaluate the revisedproposals in accordance with the law and the terms of the RFP. These consolidated protests are sustained.

BACKGROUND

On April 1, 2011, OCP issued a Request for Proposals for Solicitation No. DCCF-2011-R-3963-SDA 2 (RFP) for a contractor to design and implement a quality, year-round educational program tosupport between 250-500 at-risk youths.1 (AR at Ex. 1.) Per the RFP, the District intended to issue acontract consisting of a base year with four additional option years. (AR at Ex 1, F.1-F.2.4.) The RFPwas revised six times prior to the deadline for receipt of proposals on June 8, 2011. (Mot. to Dismiss 3.)The revisions are as follows: (i) on April 14, 2011, the due date was changed from April 22, 2011, to May4, 2011; (AR at Ex. 2) (ii) on April 26, 2011, (Amendment 0001), the due date was extended to May 13,

2011; (id.) (iii) on May 9, 2011 (Amendment 0002), the due date was extended to May 27, 2011; (id.) (iv)on May 18, 2011 (Amendment 0003), the RFP was replaced in its entirety and the due date was extendedto May 31, 2011; (id.) (v) on May 26, 2011 (Amendment 0004), technical amendments were made tocertain sections of the RFP and the due date was extended to June 6, 2011; (id.) and (vi) the due date wasextended for the final time, via E-Sourcing message board, to June 8, 2011, (id.).

Terms of the Solicitation

Under the Revised RFP, the District of Columbia was divided into two Service Delivery Areas(SDAs):

SDA 1: Wards 1, 2, 3, and 4SDA 2: Wards 5, 6, 7, and 8

(AR at Ex. 1, B.3.1.)

The RFP stated: It is the intent of the District to award at least one contract for each of theSDAs. The District will award additional contracts based upon program needs and availability offunds.2 (Id.) Potential offerors were to submit proposals to design and implement a year-round in-school youth program to provide services promoting academic achievement, successful graduation,awareness of and readiness for post-secondary education, career preparation, and connections toemployment. (AR at Ex. 1, C.1.)

The RFP further stated that the District would award a contract to the responsible offeror(s)whose offer(s) is most advantageous to the District (AR at Ex. 1, M.1.1) based upon the following

technical evaluation criteria: (1) Price Criterion, 10 points; (2) Technical Approach, 50 points, (3)Technical Expertise, 30 points, (4) Past Performance, 10 points. (AR at Ex. 1, M.3.3.1 M.3.3.4.) Theevaluation criteria also allowed an additional 10 technical bonus points for in kind/cash match resourcesand 12 points for CBE preference, providing for a maximum 122 total points. (AR at Ex. 1, M.3.4.1,M.3.4.2, M.5.)

1This solicitation follows an earlier solicitation issued in September 2010 for the same services. (See, e.g., Urban

Alliance Protest 3, Aug. 10, 2011.)2All protesters in this matter are challenging only the award for SDA 2.


3/20


P-0891, P-0892

-3-

Ratings were to be assigned for each factor according to the scale below:

Numeric Rating Adjective Description

0 Unacceptable Fails to meet minimum requirements; e.g., no demonstrated capacity,

major deficiencies which are not correctable; offeror did not addressthe factor.

1 Poor Marginally meets minimum requirements; major deficiencies which

may be correctable.

2 Minimally

Acceptable

Marginally meets minimum requirements; minor deficiencies which

may be correctable.

3 Acceptable Meets requirement; no deficiencies.

4 Good Meets requirements and exceeds some requirements; no deficiencies.

5 Excellent Exceeds most, if not all requirements; no deficiencies.

(AR at Ex. 1, M.2.)

According to the Procurement Chronology prepared by Contract Specialist, Crystal Farmer-Linder, the minimum solicitation requirements were contained in Sections B.3 (B.3.1, B.3.2, B.3.3),C.5.2, and C.5.2.1. (AR at Ex. 2.) These sections provided:

B.3 SERVICE DELIVERY AREAS

B.3.1 For the purpose of this RFP and the ensuing contracts theDistrict will be divided into two Service Delivery Areas (SDAs);

SDA District 1: Wards 1, 2, 3, and 4.SDA District 2: Wards 5, 6, 7, and 8.

It is the intent of the District to award at least one contract foreach of the SDAs. The District will award additional contracts

based upon program needs and availability of funds.

B.3.2 In order for an Offeror to be awarded a contract, the Offerormust serve the entire SDA and the Offeror must operate

programming at a location within the SDA. The Offeror is notlimited to serving only youth who reside within that SDA andthe District reserves the right to refer eligible youth to anyOfferor awarded a contract who has capacity at the time.

B.3.3 If an Offeror submits proposals for both SDAs, and, if theOfferor is awarded a contract for each SDA, each contract shallstand alone. The awarded Offeror shall not co-mingle funds,


4/20


P-0891, P-0892

-4-

personnel, required activities, services or any other contractrequirement between the two contracts.

C.5.2 YOUTH POPULATIONThe following youth population shall be targeted:

C.5.2.1 The Offeror shall provide services to youth who are most likelyto become disconnected. This represents youth who are low-income individuals, between the ages of 14 and 21, and who arecurrently in school (See Section C.3.12 for a definition of theterm In-School Youth)

(AR at Ex. 1.)

Subsequently, in the Districts response to this Boards October 25 th request for supplementalinformation, the mandatory minimum requirements were further identified as Sections B.3, C.1, C.5.2,C.5.4.2, and C.5.12.9. (Districts Resp. to Order of the Board Dated Oct. 25 A [hereinafter Resp. to Bd.

Order].) Notably, the District did not previously identify Sections C.1, C.5.4.2 and C.5.12.9 as mandatoryrequirements in either its Motion to Dismiss or in the Procurement Chronology. (See AR at Ex. 2; Mot.to Dismiss 3.) These sections provide:

C.1 SCOPE

The Government of the District of Columbia (District), Office ofContracting and Procurement (OCP) on behalf of the Departmentof Employment Services (DOES), is soliciting Offerors to designand implement quality year-round youth workforce development

programs that best meet the needs of District youth and the provisions of the District of Columbia Youth Employment

Services Initiative Amendment Act of 2005 and the WorkforceInvestment Act of (WIA) of 1998. The In-School Year RoundYouth Program, supporting between 250-500 youth, will be

provided to District of Columbia youth who are at-risk ofbecoming disconnected.

The Offeror shall design and implement a Year Round In-SchoolYouth Program that shall provide services promoting academicachievement, successful graduation, awareness of and readinessfor post-secondary education, career preparation, attainment ofmeasurable technical or occupational skills, and connections toemployment. The program must focus on drop-out prevention

and intervention strategies for youth at-risk of not completinghigh school for a maximum of fifty (50) youth ages 14 through21, for a minimum of ten (10) and a maximum of fifteen (15)hours per week.

During the summer, the program shall provide academicenrichment, career exploration, employment, job readiness, andleadership skills training. The summer component shall supportthe goal of enhancing the educational and work readiness


5/20


P-0891, P-0892

-5-

competencies of youth through innovative learning activities.Youth ages 14-15 will be permitted to work for up to 20 hours

per week and youth ages 16-21 will be permitted to work for upto 25 hours per week. Program activities shall conclude by7:00PM and may include weekend activities and training

sessions.

C.5.4.2 All youth served must meet eligibility criteria detailed inSections C.5.2 through C.5.2.3.

C.5.12.9 For each year that a youth participates in a program, DOES willprovide the youth up to $2,625 for wages and/or stipends. Youthmay receive up to $50 per week for stipends. Youth may receivewages for work experience for up to 10 weeks a year, for up to20 hours per week (for youth ages 14-15) and up to 25 hours perweek (for youth ages 16-21). Youth will be paid $7.25 per hour.

(AR at Ex. 1, C.1, C.5.4.2, C.12.9.)

The RFP detailed the evaluation procedure that was to be used to review the proposals ofofferors. It stated that OCP will review each proposal to determine its responsiveness. Proposalsdetermined to be ineligible or nonresponsive will be discarded. (AR at Ex. 1, M.3.6.1.) Thesolicitation further provided that:

Each proposal determined to be responsive will be evaluated by atechnical review team. Teams will evaluate proposals based on theEvaluation Factors for Technical Approach (Section M.3.3.2); TechnicalExpertise (Section M.3.3.3); Past Performance (Section M.3.3.4); andTechnical Bonus Points (M.3.3.5). Team members will represent a range

of expertise in youth workforce development and may include DOESstaff; other DC agency staff; and professionals from national and localorganizations.

OCP will determine the Price Proposal score based on the evaluationformula as described in Section M.3.3.1. The Price Proposal score will

be combined with the Technical Proposal score once the TechnicalEvaluations have been completed. OCP will also determine whether

proposals qualify for Preference Points (M.3.4).

All proposals will be ranked accordingly.

(AR at Ex. 1, M.3.6.2.)

In response to questions from potential offerors, OCP stated: The offerors proposal should besubmitted with the offerors identity. OCP will redact the offerors identity from the submitted proposalsto ensure a blind evaluation process. (AR at Ex. 1, 30Q.)


6/20


P-0891, P-0892

-6-

The Evaluation of Proposals

By June 8, 2011, twenty-three offerors submitted proposals in response to the RFP. (Mot. toDismiss 3.) As noted, OCP assured bidders in writing that it would conduct a blind evaluation wherebythe names of offerors would be removed. (AR at Ex. 1, 30Q.) Between June 13 and June 24, 2011, the

Technical Evaluation Panel (Panel), consisting of three members of DOES, performed independentreviews of the initial proposals and created a consensus panel report. (AR at Ex. 2.) According to theProcurement Chronology, each proposal was redacted so that the Panel could perform a blind evaluation.(AR at Ex. 2.)

Simultaneously, the Contracting Officer (CO) conducted his own review and scoring of eachproposal. (AR at Ex. 2.) Unlike the Panel, the COs review was not blind. (Resp. to Bd. Order L.) And,despite the inconsistency, there is no evidence that the District informed offerors of this change in

procedure. The three independent scores of the panelists, the Panels consensus scores and the COsscores were tabulated and are provided in the Exhibit entitled Consolidated Twenty-three evaluationsand Bid Tabulation Sheet. (AR at Ex. 3.)

The evaluation conducted by the Panel resulted in the following:

(i) twelve offerors received a higher score than the awardee, Synergistic;(ii) seven offerors received the same score as Synergistic, including protester Urban

Alliance; and(iii) three offerors received a lower score than Synergistic. (See generally AR at Ex. 3.)

However, the COs evaluation of the same proposals under the same rubric resulted in thefollowing:

(i) Synergistic received the highest score of any offeror (the CO awarded 29.4 morepoints to Synergistic than did the Panel); (see AR at Ex. 3, at 53)

(ii) Urban Alliance received 23.8 points less from the CO than it did from the Panel;(see AR at Ex. 3, at 57)(iii) Bidder Js individual evaluation sheet was marked as unresponsive and appears

without scores for any of the evaluation factors, (Resp. to Bd. Order at Ex. C) yet,the CO provided scores for Bidder J in every category for the Bid Tabulation Sheet.(AR at Ex. 3, at 31-32.)

According to the District, proposals that clearly demonstrated an inability to meet one or all ofthe requirements [stated in Sections B.3, C.5.2, and C.5.2.1] were immediately removed from thecompetitive range by OCP. (AR at Ex. 2.) OCP determined that three offerors were outside thecompetitive range: (i) Marquita Anissa Vaughn Foundation, (ii) Urban Alliance, and (iii) United PlanningOrganization. (AR at Ex. 2.) Specifically, Urban Alliance was said to not meet the minimum

requirements set forth in Section C.5.2.1. (AR at Ex. 2.)

A First Round BAFO (1st BAFO) was conducted in writing with the remaining twenty offerors,beginning July 12th and closing July 15th. (AR at Ex. 2.) Seventeen offerors submitted responses to the 1st

BAFO. (AR at Ex. 2.) The Procurement Chronology states that [i]n most cases, offerors responded tothe noted deficiencies. (AR at Ex. 2.)

Citing an inability to reconvene the Panel to review the BAFO proposals in time to meet theaward deadline, the CO scored the BAFO submissions without the assistance of the Panel. (AR at Ex. 2.)


7/20


P-0891, P-0892

-7-

The District states that the CO reviewed the offerors original submissions, the original findings of thePanel, and the offerors BAFO submissions in evaluating the 1st BAFO proposals. (AR at Ex. 2.) Despitethe claim that the CO took into account the ratings of the Panel, the technical scores of many offerorsremained unchanged throughout the COs evaluation process. In fact, the scores from the COs initialreview of proposals remained exactly the same for eight out of seventeen offerors. (See AR at Ex.3.)

Alluding to budgetary concerns in light of the proposed cost of services under the 1st BAFOs, theDistrict decided to hold a Second Round BAFO (2nd BAFO) with all seventeen remaining offerors. The2nd BAFO related to pricing only. (AR at Ex. 2.) The 2nd BAFO instructions provided that the Districtsought a per participant cost range between $2,500.00 and $4,500.00. (AR at Ex. 2.) The request for 2nd

BAFOs was issued July 28, 2011. (AR at Ex. 2.) All seventeen remaining offerors submitted proposals inresponse to the Districts request. (AR at Ex. 2.)

During the 2nd BAFO review, the Contract Specialist determined that nine of seventeen BAFOsdid not meet the [mandatory] requirements of the solicitation and should have been removed from thecompetitive range after the 1st BAFO. (AR at Ex. 2.) Evidently, the evaluators themselves were unclearas to which requirements were mandatory under the RFP.

Additionally, OCPs Cost/Price Analyst conducted a review of the 2nd BAFO responses and provided findings to the CO. (AR at Ex. 2.) Synergistics 2nd BAFO proposed a base year cost of$225,017.31 with the cost for option years 1 through 3 at $225,019.88 each. (See AR at Ex. 2.)Remarkably, the cost of providing the very same services for option year 4 was offered at $8,118.25, amere 3.61% of the cost of the other years. (See AR at Ex. 2.) While some of the other offerors alsoreduced their prices for option year 4, those that did, reduced the cost for option year 4 by an average of45%. (See AR at Ex. 2.) The analysis of Synergistics proposal concluded that its proposed budgetincluded 72.34% overhead on labor plus fringe benefits and that the rates could not be supported. (Resp.to Bd. Order at Ex. H, at 4.)

The Boards Record

The record consists of the RFP, Procurement Chronology, Determination and Findings (D&F)Reports, and other documents submitted by the protesters and the District, including those in the AgencyReport or in response to a request from this Board. Most notably, the District provided a Bid TabulationSpreadsheet for every offeror that shows each evaluation factor under each evaluation criterion. For eachevaluation factor, the District provided the individual score of each panelist along with the consensusscore of the Panel for each factor and for each offeror. The District also provided the COs scores and thescores following the 1st BAFO. (See AR at Ex. 3.)

With respect to the individual evaluation sheets of offeror proposals (see Resp. to Bd. Order atEx. C), there are significant gaps in the record and unexplained inconsistencies. For example,

(1) some evaluations are incomplete, with missing pages; (see id.)(2) there are no evaluation sheets provided for contractors I, K and P;(see id.)

(3) the District provided only one evaluation sheet per bidder (see id.)yet the Bid Tabulation Sheets show that four individual evaluationswere completed for each bid (three panelist evaluations and one COevaluation) (see AR at Ex. 3);

(4) all of the evaluation sheets reflect only the COs scores; (compareResp. to Bd. Order at Ex. C, with AR at Ex. 3)


8/20


P-0891, P-0892

-8-

(5) there is no record of the Panels individual evaluation sheets (withthe exception of the evaluation for Offeror X)3

(6) the District provided two different evaluation sheets for Offeror Sand, even though both evaluation sheets were completed by the CO,different scores appear on each sheet and only one evaluation sheet

matches the scores on the Bid Tabulation Sheet; (see Resp. to Bd. atEx. C;see also AR at Ex. 3)

;

(7) individual evaluation sheets are inconsistent with the BidTabulation Sheet; (compare Resp. to Bd. Order at Ex. C, with AR atEx. 3)

(8) in seven instances the scores on the individual evaluation sheet donot match scores on the Bid Tabulation Sheet; (compare Resp. toBd. Order at Ex. C, with AR at Ex. 3)

(9) in three instances the inconsistency is confined to a singleevaluation criterion or a few technical approach factors; (compareResp. to Bd. Order at Ex. C, with AR at Ex. 3)

(10) in one instance the COs comments in the spreadsheet are consistent

with the comments in the corresponding evaluation sheet; however,none of the scores match those recorded on the evaluation sheet;(compare Resp. to Bd. Order at Ex. C, with AR at Ex. 3)

(11) in five instances the Board was unable to locate any scores on theBid Tabulation Sheet that reflect those on the evaluation sheet;(compare Resp. to Bd. Order at Ex. C, with AR at Ex. 3)

(12) the evaluation sheet for one Offeror is completely blank except forthe word unresponsive in the header; yet, for this particular

bidder, there are scores from every evaluator for each evaluationfactor; (compare Resp. to Bd. Order at Ex. C, with AR at Ex. 3) and

(13) lastly, the District has been unable to provide sufficientcontemporaneous documentation of the evaluation process.4

The Protests

On July 28, 2011, Urban Alliance received notice that it was not in the competitive range. (UrbanAlliance Protest 2, Aug. 10, 2011.) Urban Alliance filed its protest with this Board on August 10, 2011.(Id.) It asserted three grounds for protest based on: (i) alleged irregularities that permeated the

procurement process from as early as September 2010 when an earlier solicitation was issued for the sameservices;5

3The evaluation sheet provided for Offeror X corresponds to the set of scores assigned to Evaluator 3 on the Bid

Tabulation Sheet. (Compare Resp. to Bd. Order at Ex. C, with AR at Ex. 3.) However, the evaluation wascompleted by Crystal Farmer-Linder, the Contracting Specialist. (See Resp. to Bd. Order at Ex. C.) It is unclear

whether Ms. Farmer-Linder was part of the Panel since at times her scores appear in the CO column on the Bid

Tabulation Sheets.

(ii) the Districts cancellation and reissue of a nearly identical solicitation; and (iii) the

4The D&F Report was completed more than a month after the award to Synergistic. (See AR at Ex. 2.)

5On December 16, 2010, Urban Alliance was awarded a contract for similar services under the earlier solicitation;

however, the award was later cancelled on January 14, 2011. (Urban Alliance Protest 3-4.) Protesters have allegedthat unexplained irregularities started in the earlier procurement and continued through to the present solicitation.(See, e.g., Urban Alliance Resp. to Mot. to Dismiss 2, Oct. 4, 2011.)


9/20


P-0891, P-0892

-9-

Districts failure to evaluate the proposals in accordance with the law and the terms of the solicitation. (Id.at 3-8.)

On August 12, 2011, the Chief Procurement Officer signed a Determination and Finding toProceed with Award While Protest is Pending.6 (Letter to Board of Contract Appeals from Howard

Schwartz, Senior Assistant Attorney General Attach. 1, Aug. 15, 2011.) The District awarded thecontract to Synergistic on August 12, 2011. (AR at Ex. 5.)

On August 17, 2011, VOOS and PEECC received notice of award. (VOOS Protest 1, Aug 19,2011; PEECC Protest 1, Aug. 24, 2011.) VOOS filed its protest on August 19, 2011, and asserted thesame three grounds for protest as Urban Alliance.7 (VOOS Protest 3-7.) On August 24, 2011, PEECCfiled its protest. PEECC asserted fifteen different bases for protest which fall into two general categories:(i) that incomprehensible irregularities occurred during a five month procurement process; and (ii) that theDistrict failed to comply with the legal conditions and terms of solicitation. (PEECC Protest 2-5.)

On August 18, 2011, JAG and HDA received notice of award. (JAG Protest 2, Sept. 1, 2011;HDA Protest 2, Aug. 26, 2011.) HDA filed its protest with this Board on August 24, 2011, and alleged

two bases for protest: (i) that unexplained irregularities permeated the procurement; and (ii) that theDistrict failed to evaluate the proposals in accordance with the law and the terms of the solicitation. (HDAProtest 4-7.) On September 1, 2011, JAG filed the last of these related protests and asserted the same

protest grounds as Urban Alliance. (JAG Protest 3-9.)

On September 2, 2011, the Board consolidated the above-referenced protests. On September 23,2011, the District filed its Motion to Dismiss with the Board.

DISCUSSION

I. BOARD JURISDICTION

We exercise jurisdiction over this protest and its underlying allegations pursuant to D.C. Code 2-360.03(a)(1) (2011).

A. Timeliness

The District has argued that the protests are untimely because the protesters were aware ofalleged procurement irregularities that were said to have occurred prior to June 8, 2011, the deadline forreceipt of proposals. Under CAB Rule 302.2(a), [a] protest based upon alleged improprieties in asolicitation which are apparent prior to bid opening or the time set for receipt of initial proposals shall befiled with the Board prior to bid opening or the time set for receipt of initial proposals. Theseirregularities, as alleged, generally relate to the cancellation of the earlier solicitation, the cancellation andreissue of the RFP, numerous extensions of the due date, and extending the final deadline for receipt of

6On September 6, 2011, Urban Alliance filed a motion challenging the D&F and the Board then requested that the

parties file briefs on its authority to decide such challenges. The District and Urban Alliance each filed briefsaffirming the Boards authority to rule on D&Fs following the Procurement Practices Reform Act of 2010. ( SeeDistrict of Columbia Br. to the Contract Appeals Bd. 1-3, Sept. 19, 2011; Urban Alliance Br. on the Authority of theContract Appeals Board to Rule on a Challenge to an Agencys DNF 1-2, Sept. 12, 2011.) The present Order rendersmoot the challenge to the August 12th D&F.7On December 16, 2010, VOOS was awarded a contract for similar services under the earlier solicitation. The

award was later cancelled on January 14, 2011. (VOOS Protest 3.)


10/20


P-0891, P-0892

-10-

proposals after some offerors had already submitted their proposals. Since these alleged improprieties, in particular, were all known to the protesters prior to June 8th, the protest grounds related to theseirregularities are, in fact, untimely.

However, in addition, each of the protesters alleged that the District failed to evaluate the

proposals in accordance with the law and the terms of the solicitation. Although the District has arguedthat the protesters have failed to meet the requirement of CAB Rule 301.1(c) which requires the proteststo include a clear and concise statement of the legal and factual grounds of the protest, (Mot. to Dismiss9) this Boards precedent has been to read Rule 301.1(c) very narrowly. We have held that [w]here theDistrict believes that a protest ground fails to state a violation of procurement law or regulation or isunsupported by the facts, the matter should be addressed through the Agency Report on the merits in thefirst instance and the absence of detailed facts concerning an alleged procurement deficiency in the initial

protest filing does not necessarily dictate dismissal. CUP Temporaries, Inc., CAB No. P-0474, 44 D.C.Reg. 6841, 6844 (July 3, 1997). Thus, even where a protesters allegations are mainly conclusory or

barely supported by fact, where the applicable law and regulations at issue are made reasonably clear, thisBoard must address the allegations on the merits. Unfoldment, Inc., CAB No. P-0435, 44 D.C. Reg. 6377,6381 (Sept. 12, 1995).

In this instance, the law and regulations at issue are reasonably clear due to the protestersallegations of improper evaluation procedures. And, by filing protests within (10) business days of theirknowledge of the award to Synergistic, the protests, as they relate to the evaluation process, were timely.Under CAB Rule 302.2 (b), protests shall be filed with the Board not later than (10) business days afterthe basis of the protest is known or should have been known. In Sigal Construction, CAB Nos. P-0690,P-0693, P-0694, 52 D.C. Reg. 4243, 4254 (Nov. 24, 2004), the Board clarified that the (10) day period

begins when the offeror knows the basis of the protest and the party has become aggrieved due to anofficial action adverse to that party. The Board also held that notice of award is considered an adverseofficial action.Id.

For Urban Alliance, the adverse official action occurred on July 28, 2011, when it received noticethat it was not in the competitive range. (See Urban Alliance Protest 2.) It filed its protest with this

Board on August 10, 2011, well within (10) business days of the Districts adverse official action. Withrespect to the other protesters, notice of adverse official action occurred on either August 17th or 18th

when they received notice of the award to Synergistic. (See, e.g., VOOS Protest 1.) Each offeror haduntil August 31 or September 1 respectively to file a protest with this Board. JAG filed the last of theseconsolidated protests on September 1, 2011. (JAG Protest.) Accordingly, all protests were timely filedwith this Board.

B. Standing

The District has argued that the protesters are without standing since they are not next in line andtherefore do not have a reasonable chance of award. (Mot. to Dismiss 7.) This Board has long held thatin order to have standing a bidder must be next in line for award in order to show that it has suffered, or

will suffer, direct economic injury as a result of the adverse agency action. Scientific Games, Inc., CABNo. P-0294, 41 D.C. Reg. 3666, 3670 (Sept. 24, 1993). However, the Board has also held that protestershave standing when challenging the integrity of the manner in which offeror proposals are scored even ifthey are not next in line for award. In CUP Temporaries, Inc., CAB No. P-0474, 44 D.C. Reg. 6841 (July3, 1997), the Board held that [b]ased on the final rankings of the evaluators, it is clear that the Protesteris ranked third among the offerors on the RFP. Nevertheless, since the Protester challenges the integrityof the manner in which the agency officials scored all the offerors the Protester meets the standingrequirements.


11/20


P-0891, P-0892

-11-

In this case, the protesters have alleged irregularities in the procurement process and we havespecifically noted herein a number of evaluation irregularities in the record.8 Under the circumstances,the evaluation rankings are not dispositive and the protesters meet the CUPstandard for standing.

II. EVALUATION PROCESS

The Boards standard of review for proposal evaluations and the related selection decision iswhether the Districts actions were reasonable, in accord with the evaluation and selection criteriaidentified in the solicitation and whether there were violations of procurement laws or regulations. See,Trifax Corp., CAB No. P-0539, 45 D.C. Reg. 8842, 8847 (Sept. 25, 1998); see also Health Right, Inc.,D.C. Health Coop., Inc., & The George Washington Univ., CAB Nos. P-0507, P-0510, P-0511, 45 D.C.Reg. 8612, 8630 (Oct. 15, 1997). In applying this standard of review to this protest, we find that theviolations of procurement law are sufficiently material such that the selection decision cannot besupported based on the evidence submitted for review. Following are four general areas where the Boardfinds the evaluation process inconsistent in terms of the solicitation and in violation of procurement law:(A) failure to disclose mandatory minimum requirements, (B) failure to adequately document, (C) failure

to evaluate reasonably, and (D) failure to conduct a blind evaluation.

A. Failure to Disclose Mandatory Minimum Requirements

Urban Alliance alleges that the Districts decision to exclude it from the competitive range was based on an improper application of an undisclosed mandatory minimum requirement.9 (UrbanAlliances Resp. to Districts Mot. to Dismiss 5, Oct. 4, 2011.) Specifically, Urban Alliance points toSection C.5.2.1 as the basis for its exclusion from the competitive range. (Urban Alliances Comments onthe AR 4, Oct. 12, 2011.) But it argues that the language of C.5.2.1 is not sufficiently distinct from otherrequirements in the solicitation to set it apart as a mandatory minimum requirement. (Id. at 4-5.)

We agree. This Board finds that in establishing the competitive range, the District arbitrarily

identified mandatory minimum requirements that were used to disqualify Urban Alliance and otherbidders even though such mandatory requirements were never communicated to the offerors either in thelanguage of the solicitation or in the subsequent discussions.

A mandatory minimum requirement is pass/fail in nature and may lead to the outright rejectionof a proposal that falls short of what [it] specif[ies]. Banknote Corp. of Am., Inc. v. United States, 56Fed. Cl. 377, 382 (2003). Accordingly, procurement practice dictates that [m]andatory minimumrequirements must be clearly identified as such within the solicitation so as to put the offerors on noticeof the serious consequences of failing to meet the requirement. Id. Additionally, if one factor in anevaluation is predominantly more important than another, this information should be disclosed toofferors. Isratex, Inc. v. United States, 25 Cl. Ct. 223, 230 (1992). A procuring agency should providefullest possible disclosure of the relative importance of all evaluation factors. Id.

8See our discussion of evaluation irregularitiessuprapp 7-8.

9 Urban Alliances technical proposal stated that its High School Internship Program targets youths ages 16-19.

(Urban Alliance Resp. to Districts Mot. to Dismiss Ex. A-1, at Part I.B.) The District may have been unclear

whether Urban Alliance intended to provide services to all of the ages 14-21 youth population; however, this Board

has held that if there is a close question of acceptability or if the noted deficiency is susceptible to correction

through relatively limited discussion, then the inclusion of the proposal in the competitive range is in order. Educ.

In-roads, a div. of Sylvan Learning Sys., Inc., CAB No. P-0552, 46 D.C. Reg. 8519, 8525 (October 27, 1998).


12/20


P-0891, P-0892

-12-

In the Agency Report, the Contract Specialist states that [t]he competitive range included thoseofferors whose proposals met the minimum requirements of the solicitation as set forth in the followingSections: B.3.1, B.3.2, B.3.3, C.5.2, and C.5.2.1. (AR at Ex. 2.) In its response to the Boards October25th request for supplemental information, the District put forth not only those previously-identifiedsections, but in addition, Sections C.1, C.5.4.2 and C.5.12.9 were newly-identified as mandatory

minimum requirements of the solicitation.10

(See Resp, to Bd. Order A.)

A review of Section B.3.2 shows that it clearly and plainly states that in order to be awarded acontract, the offeror must fulfill that sections proposal requirement.

In order for an Offeror to be awarded a contract, the Offeror must servethe entire SDA and the Offeror must operate programming at a locationthat is within the SDA.

(AR at Ex. 1, B.3.2)

Section C.5.2.1, which has also been identified by the District as a mandatory minimum

requirement, states:

The Offeror shall provide services to youth who are most likely to become disconnected. This represents youth who are low-incomeindividuals, between the ages of 14 and 21, and who are currently inschool.

(AR at Ex. 1, C.5.2.1)

However, Section C.5.2.1 is not distinguishable as creating a mandatory minimum requirement whencompared to other sections in the solicitation that are similarly phrased with the use of the word shall

but not considered by the District to create a mandatory requirement. For example, the District does not

consider Section C.5.4.1 to be a mandatory minimum requirement of the solicitation. This section states:

The Offeror shall conduct preliminary activities to market the year-roundprogram to eligible youth in the community . . .

(AR at Ex. 1.)

Similarly, Section C.5.5.1 has not been identified as a mandatory minimum requirement yet it states:

The Offeror shall engage in activities and services related to threecomponents:1. Education;

2. Work Readiness and Experience; and,3. Placement and Transition Support.

(AR at Ex. 1.)

10The Procurement Chronology does not include these three sections as a basis for establishing the competitive

range or as minimum requirements of the solicitation.


13/20


P-0891, P-0892

-13-

Urban Alliance was removed from the competitive range prior to any BAFOs for failure to meetthe mandatory minimum requirement in the above-referenced Section C.5.2.1. (AR at Ex. 2.) However,Sections C.5.4.1 and C.5.5.1 are similarly phrased and those sections are not considered by the District to

be mandatory minimum requirements. We find that Section C.5.2.1 was not worded so as to put offerorson notice of the importance of that section as a mandatory minimum requirement.

After the 2nd BAFO, protesters JAG and PEECC were removed from the competitive range forfailing to meet the requirement of Section B.3.1 which states:

For the purpose of this RFP and the ensuing contracts the District will bedivided into two Service Delivery Areas (SDAs);

SDA District 1: Wards 1, 2, 3, and 4.SDA District 2: Wards 5, 6, 7, and 8.

It is the intent of the District to award at least one contract for each of theSDAs. The District will award additional contracts based upon program

needs and availability of funds.

(AR at Ex. 2.)

It remains unclear which words within this section provide notice of a requirement, let alone a mandatoryminimum requirement.

The evaluators themselves appeared to not have a clear understanding of the mandatoryrequirements that would result in offerors being removed from the competitive range. Two bidders11

failed to meet the mandatory minimum requirement of Section C.5.2.1 yet, inexplicably, were asked tosubmit BAFOs for both the first and second rounds of discussion. (See AR at Ex. 2.) Urban Alliance wasdisqualified prior to the 1st BAFO for failure to satisfy the very same requirement. Therefore some

offerors were not similarly excluded from the competitive range. (See AR at Ex. 2.) The unequaltreatment of the offeror proposals seriously violated the Districts procurement law and undermined theintegrity of the process. See D.C. Code 2-351.01(b)(4) (2010) (stating that a purpose of theProcurement Practices Reform Act of 2010 is to ensure fair and equitable treatment of all persons whodeal with the procurement system of the District government);see also Rockwell Elec. Commerce Corp.,B-286201 et al, 2001 CPD 65 (Comp. Gen. Dec. 14, 2000) (It is . . . fundamental that the contractingagency . . . treat all offerors equally, which includes . . . not disparately evaluating offerors with respect tothe same requirements.).

By way of explanation, the Contracting Specialist states that [i]t was determined by theevaluation panel and the Contracting Officer that proposals submitted by [the Marquita Anissa VaughnFoundation, the United Planning Organization, and Urban Alliance] would require substantial revisions in

order to be determined acceptable. (AR at Ex. 2.) This argument lacks credibility. Urban Alliance andthe awardee, Synergistic, each received the same scores from the Panel. Ultimately, after reviewing the2nd BAFOs, the Contracting Specialist determined that nine of seventeen bidders were mistakenlyidentified as being within the competitive range even though they should have been excluded after the 1st

BAFO for failing to meet the mandatory minimum requirements. (See AR at Ex. 2.)

11Perry School Community Center and Priority Professional Development.


14/20


P-0891, P-0892

-14-

This Board finds that the protesters were prejudiced by the Districts failure to follow proper procedures in evaluating the proposals. Bidders should not have been excluded from the competitiverange for failing to meet mandatory minimum requirements absent clear notice that failure to addressthose requirements would result in disqualification. With the exception of Section B.3.2, the language ofthe mandatory minimum requirements, as identified by the District, is insufficient to provide appropriate

notice. Even more importantly, the District did not treat offerors equally in applying mandatoryminimum requirements, in clear violation of procurement law.

B. Failure to Adequately Document

The District submitted the Agency Report to the Board on October 3, 2011. Upon its review, theprotesters filed a response to the Agency Report challenging OCPs failure to adequately document itssource selection decision. (See, e.g., Urban Alliances Comments on the AR 8.) We agree that theDistrict has failed to offer sufficient documentation of its evaluation process. There is a severe lack ofcontemporaneous documentation to explain or support an overall rational basis for the award decision aswell as OCPs decision to exclude offerors from the competitive range.

This Board has stated that source selection decisions must be documented in sufficient detail toshow that they are not arbitrary. Health Right, Inc., D.C. Health Coop., Inc., & The George WashingtonUniv., CAB Nos. P-0507, P-0510, P-0511, 45 D.C. Reg. 8612, 8635 (Oct. 15, 1997). This in no waymeans that an agency is required to retain every document or worksheet generated during its evaluationof proposals. Id. at 8636. However, [w]here an agency fails to document or retain evaluation materials,it bears the risk that there is inadequate supporting rationale in the record for the source selection decisionand that we will not conclude that the agency had a reasonable basis for decision. Id. quoting Sw Marine,Inc., B-265865, 96-1 CPD 56 (Comp. Gen. Jan. 23, 1996)). Moreover, the Districts regulations requirecertain documentation in the conduct of a procurement. Most pertinent to this protest, the regulationsrequire that where a Technical Evaluation Panel is formed to evaluate proposals, a technical evaluationreport shall be prepared by the technical official and shall contain the following:

(a) The basis for evaluation;(b) An analysis of the technically acceptable and unacceptable proposals,including an assessment of each offerors ability to accomplish thetechnical requirements;(c) A summary, matrix, or quantitative ranking of each technical

proposal in relation to the best rating possible; and(d) A summary of findings.

D.C. Mun. Regs. tit. 27 1618.5 (2002)

While the District was not required to keep copies of every piece of paper generated throughoutthe evaluation process, the documents submitted to the Board in support of this award are exceedingly

inadequate. First, there is very little contemporaneous documentation as many items submitted to therecord were not created until more than a month after the award decision. (See, e.g., AR at Ex. 2.) Cf.Trifax Corp., CAB No. P-0539, 45 D.C. Reg. 8842, 8847 (Sept. 25, 1998) (We accord greater weight tocontemporaneous evaluation and source selection material than to arguments and documentation preparedin response to protest contentions.). The only truly contemporaneous documentation provided by theDistrict are the individual evaluation sheets; a set of five page documents completed by a single evaluatorfor a particular contractor including scores for each solicitation factor and comments of the particularevaluator. (See Resp. to Bd. Order at Ex. C.) Where provided, the documentation submitted by theDistrict is incomplete. There are no evaluation sheets for contractors I, K, and P, and pages are missing


15/20


P-0891, P-0892

-15-

from some evaluations. (See id.) While three offerors are completely absent from the record, the District,with one exception, provided only one evaluation sheet for each of the remaining twenty offerors. (Seeid.) It is important to note that a total of four evaluation sheets should have been provided for eachindividual offeror as the Bid Tabulation Spreadsheet indicates that four individual evaluations wereconducted for each of the twenty-three offerors, one by the CO and one by each member of the Panel.

(See AR at Ex. 3.) The one exception is Offeror S. The District provided two evaluation sheets forOfferor S. Both were completed by the CO but contain different sets of scores and one set of those scoresappear on the Bid Tabulation Sheet. Most troubling, the evaluation sheets provided reflect only the COsscores. (Compare Resp. to Bd. Order at Ex. C, with AR at Ex. 3.) There is no record of the Panelsevaluation sheets.

Second, the few contemporaneous documents that the District provided are incongruous.Specifically, the evaluation sheets at times are inconsistent with the Bid Tabulation Sheet. In seveninstances the evaluation sheets do not concur with the set of scores on the Bid Tabulation Sheet.(Compare AR at Ex. 3, with Resp. to Bd. Order at Ex. C.) Some of these incongruities are minor, thoughstill concerning. For example, there is a sub-factor score for Offeror E that does not match the scoreawarded on the individual evaluation sheet; and similarly, Offeror Ms Technical Bonus points do not

match. (Compare Resp. to Bd. Order at Ex. C, with AR at Ex. 3.) Some inconsistencies, on the otherhand, are truly problematic. In five instances entire sets of scores on the individual evaluation sheets donot match any scores on the Bid Tabulation Sheet. (Compare Resp. to Bd. Order at Ex. C, with AR at Ex.3 (Offerors A, H, J, U, & V).) The materials provided do not support a conclusion that a rational andlawful evaluation process occurred.

Whereas this Board will not substitute its judgment for that of the CO with respect to theevaluation findings, it cannot blindly accept evaluation findings and a resulting award decision that arenot reasonably supported by the factual record. Although a Panel is not required to be used, when a Panelis convened as in this case, under D.C. Mun. Regs. tit. 27, 1618.5, a technical evaluation report must becompleted consisting of the basis for the evaluation, an analysis of the proposals, a quantitative ranking ofeach technical proposal, and a summary of findings. The District failed to provide a technical evaluation

report as required. Given the inadequacy of the record, the District did not provide sufficientdocumentation to support a finding that the award had a rational basis. Further, in light of theinconsistency of the information provided, the Board finds that there is insufficient evidence to supportthe award decision.

C. Failure to Evaluate Reasonably

The protesters have alleged that the District failed to evaluate the proposals reasonably and inaccordance with the terms of the solicitation. (See, e.g., Urban Alliance Protest 8.) They contend that the

protest should be sustained because the award decision was arbitrary. (See, e.g., id.) The District hasmaintained that it scored the proposals in strict compliance with the evaluation criteria set forth in theRFP. (Mot. to Dismiss 10-11.) Upon a review of the record, the Board finds that the evaluation process

violated procurement law as there is no consistent, discernable standard or approach. The Boardconcludes that the process was arbitrary, unreasonable and not in accordance with the terms of thesolicitation or the relevant procurement statutes and regulations.

In determining the propriety of an evaluation decision, we examine the record to determinewhether the judgment was reasonable and in accord with the evaluation criteria listed in the solicitationand whether there were any violations of procurement laws or regulations. Health Right, Inc., D.C.Health Coop., Inc., & The George Washington Univ., CAB Nos. P-0507, P-0510, P-0511, 45 D.C. Reg. at8635. In reviewing an evaluation decision, the Board must consider the totality of the record to determine


16/20


P-0891, P-0892

-16-

if the evaluations are reasonable and bear a rational relationship to the announced criteria upon whichcompeting offerors are to be selected. Id.

The terms of the solicitation clearly stated that a technical review team would be used to evaluateeach responsive proposal. (AR at Ex. 1, M.3.6.2.) According to the Procurement Chronology, the Panel

consisted entirely of DOES staff. (See AR at Ex. 2.) The panelists and the CO each independentlyconducted a simultaneous review of the proposals in accordance with the evaluation criteria set forth inSection M of the RFP. (AR at Ex. 2.) The CO then reviewed the 1st BAFOs and the 2nd BAFOs withoutassistance of the Panel. (See AR at Ex. 2.)

A review of the Bid Tabulation Sheet shows that the individual scores of panelists, prior to theconsensus panel discussion, were often within a comparable range of each other. (See AR at Ex. 3.) Forexample, in the case of Synergistic, the panelists individual scores are all within a one point range ofeach other. (See AR at Ex. 3, at 51-53.) After independent review, the Panel met to assign a consensusscore to each offerors bid. (AR at Ex. 2.) The following is a brief summary of the Panels findings:

Proposals receiving scores >Synergistics score 12

Proposals receiving scores = Synergistic (7) + Synergisticsscore (1) 8Proposals receiving scores


17/20


P-0891, P-0892

-17-

only to determine whether it is reasonable, but also to determine the offerors understanding of the workand ability to perform the contract. D.C. Mun. Regs. tit. 27, 1618.2 (2002). Synergistic proposed a

base year cost of $225,017.31 with the cost for option years 1 through 3 at $225,019.88 each. (See AR atEx. 2.) The cost for option year 4, however, is priced at $8,118.25, (see AR at Ex. 2) which represents amere 3.61% of the cost of services for the other years. This calls into question whether Synergistic would

be able to provide the required services during option year 4 at that stated price. The COs analysismakes no note of that fact despite this significant variance. Some other offerors also reduced their pricingfor option year 4; however, those that did, reduced the price for option year 4 by an average of 45%. (SeeAR at Ex. 2.) Besides, in the analysis, the Contract Specialist reviewed Synergistics pricing and statedthat Synergistics proposed budget included 72.34% overhead on labor plus fringe benefits and that therates could not be supported. (See Resp. to Bd. Order at Ex. H.) There is no evidence that the CO

properly accounted for this incongruity when scoring pricing under the solicitation.

Hence, we find that the CO failed in his duty to properly evaluate the proposals in two significantways. First, as previously discussed, the CO did not properly consider the evaluations and comments

prepared by the Panel as there is no documentation to support the oftentimes significant deviationfrom the Panels scores. Second, the CO appears to have at times merely adopted evaluation scores and

comments written by other individuals (and it is unclear whether such persons are panelists or OCP orDOES employees).12

The Districts procurement regulations provide that a contracting officer may be assisted byothers in evaluating proposals. However, where a contracting officer is in fact assisted, he must notrelinquish his decision-making authority even though it is incumbent upon him to consider the opinions ofthose chosen to assist him. In the past this Board has held that technical point scores and descriptiveratings of lower level evaluators must be considered by the Contracting Officer in making the finalselection even though he is not bound by those evaluations or recommendations. Health Right, Inc.,D.C. Health Coop., Inc., & The George Washington Univ., CAB Nos. P-0507, P-0510, P-0511, 45 D.C.Reg. at 8636. At the same time, the procurement regulations clearly state that it is the responsibility ofthe contracting officer to evaluate each proposal in accordance with the evaluation criteria in the

solicitation. D.C. Mun. Regs. tit 27, 1618.1 (2002). Consequently, this Board has noted that[a]lthough the contracting officer may be assisted in the evaluation by others, . . . the contracting officeralways remains responsible for the evaluation of proposals. Health Right, Inc., D.C. Health Coop., Inc.,& The George Washington Univ., CAB Nos. P-0507, P-0510, P-0511, 45 D.C, Reg. at 8636. Ultimately,it is inappropriate for the contracting officer to merely adopt evaluation and scoring conducted byindividuals other than himself. See id. at 8637.

In this case, the CO appears to have been assisted by individuals other than Panel members. Innine instances, three other individuals scored proposals and the scores provided appear as the COs scoreson the Bid Tabulation Sheet.13

12Although Stuart Keeler has been identified as the Contracting Officer (AR at Ex. 1), the names of Eloine Evans-

McNeill, John Deer, and Crystal Farmer-Linder all appear along with the CO on the individual tabulation sheets.

(See Resp. to Bd. Order at Ex. C.)

The CO personally completed only eight evaluation sheets. (See Resp. toBd. Order at Ex. C.) All the evaluation sheets provided, whether completed by the CO or one of the threeother individuals, reflect the scores of the CO on the Bid Tabulation Sheet. (Compare Resp. to Bd. Order

at Ex. C, with AR at Ex. 3.) It is the COs responsibility to review proposals and where scores awardedby individuals other than the CO are presented as the COs scores, it appears that the CO abdicated his

13 Eloine Evans-McNeill, John Deer, and Crystal Farmer-Linder completed 12 of the 20 evaluation sheets. (SeeResp. to Bd. Order at Ex. C.)


18/20


P-0891, P-0892

-18-

responsibility. There is no explanation in the record for this practice, which as it stands, does notconstitute a valid exercise of contracting officer judgment.

The Board finds that the CO acted in an arbitrary and unreasonable manner in failing to evaluateofferor proposals in accordance with the law and the terms of the solicitation. He failed to consider the

findings of the Panel as well as failed to conduct a personal evaluation of all proposals. Given the totalityof the record, we cannot conclude that the evaluation process was reasonable or rationally related to thecriteria set forth in the RFP.

D. Failure to Conduct a Blind Evaluation

The District has indicated that the COs evaluation of the proposals was not blind, that is, at thetime of his review, the offeror proposals were not anonymous. (AR at Ex. 2.) However, the COs failureto conduct a blind evaluation violated the express terms of the solicitation. In protests of solicitations andawards, the Board conducts a de novo review to determine whether the solicitation or award was inaccord with the applicable law, regulations and terms and conditions of the solicitation. RecyclingSolutions, Inc., CAB No. P-0377, 42 D.C. Reg. 4550, 4578 (April 15, 1994). Under CAB Rule 314.1, in

sustaining a protest, the Board determines whether the solicitation, proposed award, or award complieswith the applicable law, regulations, or terms and conditions of the solicitation.

While not addressed specifically in the RFP, in response to questions submitted by potentialofferors, the District stated that [t]he offerors proposal should be submitted with the offerors identity.OCP will redact the offerors identity from the submitted proposals to ensure a blind evaluation

process. (AR at Ex. 1, Q.30.) The question and the Districts response were incorporated into therevised RFP and became a term of the solicitation. (See id.) Despite affirming that the proposals would

be evaluated in redacted form to ensure anonymity, the CO performed the evaluations with fullknowledge of each offerors identity. (AR at Ex. 2.) In fact, the Board has reviewed twenty-oneevaluation sheets and all but seven individual evaluation sheets clearly show the name of the offeror. (SeeResp. to Bd. Order at Ex. C.)

There is nothing in the solicitation or in procurement practice to suggest that a contractingofficers review of proposals should not be subject to the very terms of the solicitation whether such termsare contained in the RFP or incorporated in the form of the Districts responses to questions submitted by

potential offerors. The COs review was not blind yet offerors were never provided notice of the changein review process. And while this violation, by itself, would not necessarily void the award decision, inthis case, the violation further undermines the integrity of the procurement. A contracting officersreview is at the heart of any evaluation process and yet the District failed to follow its own solicitationguidelines in clear violation of procurement law.

Conclusion

Because the proposal evaluations were unsupported to a substantial degree, the award toSynergistic was unreasonable. The Board hereby directs the District to terminate the contract awardedunder this RFP effective no later than the close of the current school year in June 2012. To the extent thatthese services are required by the District for the summer school session of 2012 and beyond, the Districtshall issue a request to the twenty-three offerors for revised technical and cost proposals for the remainderof the base year and the option years. The District shall evaluate the revised proposals in accordance withthe law and the terms of the RFP. These consolidated protests are sustained.


19/20


P-0891, P-0892

-19-

SO ORDERED.

DATED: February 15, 2012 /s/ Maxine E. McBeanMAXINE E. MCBEANAdministrative Judge

CONCURRING:

/s/ Monica C. ParchmentMONICA C. PARCHMENTAdministrative Judge

LOUD, Chief Administrative Judge, concurring.

I concur with my colleagues that the consolidated protests herein should be sustained. TheDistricts award decision to Synergistic followed an unreasonable and arbitrary evaluation process thatincluded, but was not limited to, the removal of Urban Alliance from the competitive range fordeficiencies (i.e., failure to meet the requirements of Section C.5.2.1) shared by two other bidders whowere asked to submit BAFOs for the first and second rounds. When coupled with the numerousadditional inconsistencies in the record (missing individual evaluation sheets, separate CO evaluationsheets for the same bidder with different scores on each, an evaluation sheet for one offeror containing theword unresponsive as to which every evaluator provided a score for each evaluation factor, etc.), theclear picture that emerges is of an evaluation process that failed to follow the solicitation terms and

provisions of law.

There should now be a growing sense of alarm among the procurement and program

professionals charged with implementing this aspect of the District of Columbia Youth EmploymentServices Initiative Amendment Act of 2005 and the Workforce Investment Act of (WIA) of 1998(DCYES and WIA). Our record shows that there have now been three consecutive solicitations for in-school youth services that have not been executed properly, as shown either by delayed solicitations,agency cancelled solicitations, or as here through the Boards cancellation of an award.

The trail of failed solicitations date back to at least Appeal of Friends of Carter BarronFoundation Of The Performing Arts, CAB No. D-1421 (unpublished) (Nov. 15, 2011), wherein the Boardfirst learned of the December 16, 2011, award for in-school youth services in Contract No. DCCF-2011-R-1000. Appeal of Friends of Carter Barron Foundation, at 4-5 (the Board dismissed the appeal and

protest on jurisdictional grounds). Through the consolidated cases herein, we now learn that theDecember 16, 2010, awards were cancelled by the District on January 14, 2011. (Urban Protest 3-4;VOOS Protest 3). Further, we learn that a second solicitation for these same youth in-school services

was issued on March 31, 2011, and cancelled on May 18, 2011. (Urban Protest, Ex. 2 ProcurementChronology; see also Urban Protest at p8-9.) Finally, the Board has now cancelled the award madeunder the third consecutive District attempt to effectuate the provisions of the DCYES and WIA.

The services procured through this solicitation have the potential to positively impact lifeoutcomes for disconnected youth in Wards 5-8 of the District. I am hopeful that the alarm bells set off bythis string of troublesome solicitations will now translate into decisive action by the Districts

procurement professionals to lawfully conduct a solicitation that will enable program professionals to


20/20


P-0891, P-0892

-20-

commence the delivery of, and sustain the relationships with youth necessary to successfully effectuatethe purposes of the Acts noted above.

/s/ Marc D. Loud, Sr.MARC D. LOUD, SR.

Chief Administrative Judge

Electronic Service:

James P. Gallatin, Jr. , Esq.Lawrence S. Sher, Esq.Gregory S. Jacobs, Esq.Joelle E.K. Laszlo, Esq.Melissa E. Beras, Esq.Stacey C. Forbes, Esq.Reed Smith LLP1301 K Street, NWEast Tower Suite 1100Washington, DC 20005

Kenya WelchVoices of Our Sisters, Inc.611 Pennsylvania Avenue, SEWashington, DC 20003

Sara StoneProgressive Educational Experiences in Cooperative Cultures2961A Hunter Mill Road, Suite 801Oakton, VA 22124

Deborah HaymanHigher Development Academy702 15th Street, NEWashington, DC 20006

Lawrence P. Block, Esq.Dennis Lane, Esq.Thorn Pozen, Esq.Stinson Morrison Hecker, LLP1150 18th Street, NWSuite 800Washington, DC 20036

Talia Cohen, Esq.Janice Skipper, Esq.Howard Schwartz, Esq.Assistant Attorney GeneralOffice of the Attorney General441 4th Street, NWWashington, DC 20001

contract appeals board opinion: synergistic inc

Documents